Abstract
It is an obvious statement that children are disproportionately affected by changes in their environment, due to their incomplete maturity, evolving capacities, vulnerabilities derived from their age and special developmental needs. Changes in temperature, air and water quality, and access to proper nutrition are likely to have more severe and long-term impacts on children's health, development and well-being, since they basically determine the enjoyment of the right of the child to a healthy environment. The impacts of climate change clearly undermine the effective enjoyment of the rights enshrined in the UN Convention on the Rights of the Child (hereinafter: UN CRC) and its Optional Protocols, including the rights to life, survival and development (art. 6), to family relations and the right not to be separated from one's parents against one's will (arts. 9–10), the highest attainable standard of health (art. 24), an adequate standard of living (art. 27), education (art. 28), freedom from any form of violence or exploitation (arts. 19, 32 and 34–36), the right to recreation and play (art. 31) and the enjoyment of one's culture (art. 30). The climate crisis has been declared as child rights crisis, although children bear the least responsibility for it.
The UN Committee on the Rights of the Child has clearly identified climate change as one of the biggest threats to children's health and has urged States Parties to put children's health concerns at the centre of their climate change adaptation and mitigation strategies.1 Despite data and research explicitly linking environmental harm to child rights violations, increasing knowledge of environmental crises and existing numerous international agreements, the common understanding of the clear relationship between children's rights and the environment is still questionable and obscure.2 In this paper we have gathered the binding international documents which clearly show the close link between children's rights and climate change, and we also analyze the measures taken by the relevant treaty-monitoring body within the field of children's rights. The main outcome of this paper is to give an introduction and an extended overview of the relevant international norms adopted by the environmental ‘crossroads’ of children's rights.
1 Introduction
‘Because children are among the most vulnerable to [climate change's] life-threatening impacts, physiologically and mentally, they will bear the burden of these harms far more and far longer than adults.’ Sacchi et al. v. Germany (CRC/C/88/DR/107/2019), paras. 2.1–2.6.
According to the UN Children's Fund (UNICEF), there may be no greater threat facing the world's children and future generations than climate change.3 ‘In every crisis, children are the most vulnerable. Climate change is no exception.’4 In 2020, there were 2.6 billion children and young people under the age of 20 years, comprising 33.2% of the world's population.5 Existing and future demographic trends reveal that many of the countries that have been identified as highly vulnerable to climate change also have higher proportions of children in their overall population (see e.g. African countries).
leaders of COP27 have taken a small but critical step in securing justice for children most affected by the climate crisis, by formally recognizing children as agents of change and setting up a fund for loss and damage (…) but far more needs to be done to secure children's futures.
About 774 million children - one-third of the world's total child population - are living with the dual impacts of poverty and high climate risk, according to a recent Save the Children report.7 In the study, 83% of children asked in 15 countries said they see impacts of the climate crisis or inequality, or both, affecting the world around them. A total of 73% believe adults should be doing more to address these issues.
Climate researchers, led by the Vrije Universiteit Brussel, find that under Paris Agreement pledges, a child born in 2020 will experience on average twice as many wildfires, 2.8 times the exposure to crop failure, 2.6 times as many drought events, 2.8 times as many river floods, and 6.8 times more heatwaves across their lifetimes, compared to a person born in 1960.8 It causes the increasing frequency and intensity of extreme weather events (droughts, heat waves, floods, etc.). Globally, nearly 160 million children have been identified as living in areas of high or extremely high drought severity.9 Extreme weather events can disrupt access to essential educational, health and housing services (e.g. children's access to education can be interrupted by damage to educational facilities and critical infrastructure and by the use of schools as emergency shelters). Climate change is already affecting water and food supplies, with severe consequences for children in deprived communities. However, it is clear that good nutrition and safe water sets children on the path to survive; we also know well-nourished children grow, develop, learn, play, participate and contribute their best and are resilient in the face of diseases, disasters and other emergencies. ‘Not only do climate and environmental hazards negatively affect children's access to key essential services, but children's lack of access to key essential services also reduces their resiliency and adaptive capacity.’10
Universal access to safe drinking water is a fundamental need and also a human right. Shortages of safe water11 and available proper food already have disproportionate impacts on children, particularly the most vulnerable. Child mortality12 in 2020 was 5 million, which means 13,800 children under the age of 5 dying every day in that year. Globally, infectious diseases, including pneumonia and diarrhea remain a leading cause of under-five deaths,13 along with preterm birth and intrapartum-related complications.14 Globally, mal- and undernutrition is responsible for about half of all under-5 deaths15 and is a major factor exacerbating the frequency and severity of other diseases and infections.16 Children are more susceptible than adults to many vector-borne and infectious diseases.17 Waterborne diseases typically spread in the aftermath of climate change-related floods and storms, especially when water and sanitation infrastructure is damaged. And moreover, although air pollution is not caused by climate change, some forms of air pollution seriously affect climate change.
Climate change is projected to increase the displacement of people; in other words, this can be seen also as a risk factor for migration and can also indirectly increase the risk of violent conflicts. Although there is no legal definition for ‘climate refugees’ yet, the climate crisis is clearly seen as a human crisis by migration related international organizations, such as the International Organization for Migration (IOM) and the UN Refugee Agency (UNHCR), and it is driving displacement and making life harder for those already forced to flee: it may both trigger displacement and worsen living conditions or hamper return for those who have already been displaced.18
According to the Intergovernmental Panel on Climate Change (IPCC), people who are socially, economically, culturally, politically, institutionally or otherwise marginalized are especially vulnerable to climate change and also to some adaptation and mitigation responses.19 The negative impacts of climate change disproportionately affect vulnerable children (e.g. poor children,20 indigenous children, minorities, migrants and other children on the move, and children with disabilities21). ‘The children of these low- and middle-income countries will be burdened with the most dangerous impacts of the climate crisis. They have inherited a problem not of their own making.’22
Interestingly climate issues have been closely linked to meaningful child participation at various points; for example, international child rights organizations (e.g. Save the Children, Child Rights Connect) supported children to attend COP27 and have their say. Further examples are the historic ruling of the UN CRC in the ‘climate change case’ or a recent climate litigation case in Queensland, Australia which was mounted in 2020 by a First Nations-led group of young people aged 13 to 30 called ‘Youth Verdict’, in which the court declared a large-scale coal project should not move forward because of its contribution to climate change.23 It is important to look closely at the fact that more and more cases are being brought to courts and tribunals arguing that inadequate state action on climate change is a breach of human rights obligations at the national and regional levels.
The principle of intergenerational equity underlying these frameworks places a duty on current generations to act as responsible stewards of the planet and ensure the rights of future generations to meet their developmental and environmental needs.
The present paper is based on descriptive analysis of the relevant, internationally accepted legal norms and other documents on children's rights and the right to a healthy environment. The paper strives to give an in-depth overview of the legal instruments for children's green rights, in which the environmentally sound, green human rights norms are directly applicable to the protection of the children.
2 A general overview of the normative background of the right to a healthy environment
2.1 Theoretical background
The current anthropogenic changes in the environment - the climate change-induced negative effects - are definitely connected with the vast majority of human rights, but the concrete challenges and pitfalls of urban living standards definitely emerge within the domain of the right to adequate housing (or an adequate standard of living and its components) and the right to (a healthy) environment.24 The same is true for children's rights as well, since their exposure to the detrimental effects of environmental changes is unquestionable. Regarding the majority of human rights, the 1993 World Conference on Human Rights held in Vienna reaffirmed the main notion of the interconnection between human rights (e.g. civil, political, economic, social and cultural rights), stating that they ‘are universal, indivisible, interdependent and closely interrelated.’25 The same is true for the third generation of human rights, including the right to a healthy environment. Therefore, the interconnected character of these rights refers to the potential links between children's rights and the right to a healthy environment.
The traditional approach to environmental rights contains several ‘consecutive’ meanings and elements entailing different entitlements, government obligations, financial contributions and enforcement mechanisms. Overall, there is at least the duty to recognize, to protect, to ensure, and to give procedural rights (for instance, access to the courts), although further entitlements or obligations are applied as deliberations by the state itself, or by states in interstate law-making. The international standards of green rights and other sustainability-related rights are hardly clarified; as Alston pointed out, ‘international lawyers seeking enlightenment as to the meaning of rights such as those pertaining to food, education, health care, clothing and shelter will find little guidance in national law’.26 Thus, a special and very general ‘minimum needs’ approach prevails in guaranteeing such rights. Eric Posner stated that, in the case of economic development (and environmental issues, as well), ‘international concern should be focused on human welfare rather than on human rights.’27 Furthermore, implementing such green rights requires positive and active participation as well as financial measures from states. Unlike civil and political rights, economic-based environmentally relevant rights cannot be effectively enforced and implemented without financial state intervention. This issue raises the three key questions of i) recognition/identification; ii) progressive implementation; and iii) enforcement/fulfillment of such rights.28
The interpretative options for environment-related green rights are the following: i) traditional substantive human rights with clear content (such as the right to clean water or to a healthy environment); or ii) procedural rights (see the Aarhus Convention29) or iii) state aims, goals, and objectives without legal obligations; or iv) rights which are only linked to other human rights, and take the form of underlying auxiliary rights, which are only components of other rights (such as the right to life);30 or v) rights which are rather general behavioural requirements and potential future expectations on behalf of the interests of future generations in the form of soft law requirements.
2.2 The evolution of the right to a healthy environment
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.32
However, as stated by Dinah Shelton, ‘it does not proclaim a fundamental human right to a healthy environment, but implies that basic environmental health is necessary for the free enjoyment and exercise of recognized human rights.’33
Although the cited section of the Stockholm Declaration is non-binding and cannot be identified as proof of explicit recognition, it encouraged further initiatives, mainly state legislation, in which the right to a healthy environment has received explicit constitutional recognition and (partial) protection.34 However, this recognition has occurred slowly, and the explicit recognition has raised several questions and anomalies. For instance, in 1976, Mower referred to some rights – including and highlighting the archetypical right to a healthy environment – stating that ‘there is a rather impressive list of rights which are held to be unrelated to the [European Convention on Human Rights], but which are also of real importance.’35 This explains the difficult situation which arose when the recognition of the need for the right to a healthy environment was proclaimed, but codification did not subsequently follow these efforts. Nevertheless, there were various forerunners in the 1990s36 that expressed the need for a substantive right, and they argued that without the right to a healthy environment, ‘individuals would have no redress for environmental damage’; however, these proposals ‘met with the disapproval of States and thus failed to be adopted’.37 Decades later, however, we can identify several international agreements enlisting the right to (a healthy) environment, including both universal and regional treaties.
Nevertheless, the inherent content of the right to a healthy environment remained uncertain and controversial for some time. In the 1990s, Philippe Cullet asserted that the ‘right to environment should nevertheless not be classified as a synthesis right, because it embodies specific characteristics that can be distinguished from other rights, and does not constitute a 'shell-right' aimed at enhancing the realization of the other ones.’38 In the following years, within the text of the treaties, the international community did not come closer to setting forth the core meaning of such rights, although studying the relevant judicial complaints, decisions and solutions, it is clear that certain criteria had already been developed regarding the interpretation and application of the rights to a healthy environment. The reason for this is that the meaning of the ‘right to environment’ can be drawn from three main sources, namely i) from the legal literature; ii) from the interpretation of the international monitoring bodies and judicial fora, and iii) from domestic law (e.g. the practice of domestic judicial courts).
From the legal literature, for instance, Law and Versteeg outlined an all-inclusive, broad notion (which is worth studying, although it seems to be too ambitious and extensive, as it embraces criminal liability as well), as they define the right to a healthy environment within socio-economic rights as including ‘the duty to protect the environment, (civil or criminal) liability for damaging the environment, [the] right to information about the environment, [the] right to compensation when living environment is damaged, [the] right to participate in environmental planning).’39 In any case, this definition clearly shows that the domain and interpretation basis of this special right is very controversial and not universal(ly accepted) although it is, to a certain degree, desired.
The other way of defining this very abstract notion is to identify the attributes mentioned before or after the word ‘environment’. The doctrinal novelty includes the words ‘adequate’, ‘clean’, ‘satisfactory’, ‘human’ or other self-evident attributes attached to the word ‘environment’ or ‘healthy environment’; however, it is very doubtful whether appending words that are clearly inherent to the core elements of environmental protection really facilitates the interpretation or application of the notion. However, regardless of the wording, these phrases and surplus words cannot dissolve the hindrances and uncertainties of the meaning of the green right in themselves.
In line with Cullet's argumentation, as of today, the general consideration is still the same, and the right to a healthy environment ‘embrace[s] fundamentally the whole of environmental law and represent[s] the fundamental tenets on which international environmental law has been built’;40 therefore, the domain of the right is closely interrelated with the contemporary international environmental documents and efforts made by the actors in the field of international law.
One of the most important questions is whether the right to a healthy environment is a substantive right, or a procedural right (or both of them simultaneously). The domain of this special right is generally two-fold: it has a substantive meaning, though its procedural aspect41 is the most obvious and actionable part of the right.42 The proof of this procedural approach is the adoption of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.43 The so-called ‘green democracy convention’ proclaimed the three pillars system, providing rights for individuals as well as their associations. The three pillars include a due and democratic, transparent process upon which individuals or groups of individuals shall be informed (first pillar), that the beneficiaries and the interested parties shall be invited to participate in the process of decision-making (second pillar) and that the individuals or groups of individuals with legal interest shall have access to a court when a potentially hazardous activity is expected to take place (third pillar). In sum, the procedural aspects in the domain of the right to a healthy environment promote the level of protection by replacing the somewhat controversial and vague substantive right approach, because the procedural side is relatively clear and enforceable.
2.3 Normative regulation
Neither the most relevant universal human rights documents (the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights), nor the regional 1950 European Convention on Human Rights and its protocols contain any explicit rules on the right to a healthy environment.
However, the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights contain two articles which implicitly embrace the right to a healthy environment. Without a doubt, article 25 of the 1948 Declaration (that everyone has the ‘right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing’) as well as articles 11 and 12 of the 1966 International Covenant on Economic, Social and Cultural Rights should be interpreted in terms of providing the environment and the environmental needs of the individual.
‘States parties should (…) ensure sustainable use of natural resources, develop and implement substantive environmental standards, conduct environmental impact assessments and consult with relevant States about activities likely to have a significant impact on the environment’
which is crucial for the ‘implementation of the obligation to respect and ensure the right to life’ (para. 62 of General Comment No. 36). Therefore, General Comment No. 36 may interlink the content of the right to life to the dangers and threats to people deriving from environmental degradation.
while the human rights implications of environmental damage are felt by individuals and communities around the world, the consequences are felt most acutely by women and girls and those segments of the population that are already in vulnerable situations, including (…) children.
That wording refers to the exceptional importance of ensuring the right to a clean, healthy and sustainable environment for children in general. The ground-breaking, albeit non-binding, resolution firstly recognizes the right to a clean (point 1), healthy and sustainable environment as a human right at a universal level; secondly, reaffirms that this right is related to other rights and existing international law (point 2); thirdly, it underlines the need for ‘full implementation of the multilateral environmental agreements under the principles of international environmental law’ (point 3), and fourthly, the resolution ‘calls upon States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, [and] strengthen capacity-building (…) to ensure a clean, healthy and sustainable environment for all’ (point 4).
Beyond the originally human rights-focused documents, the relevant environmental, treaties46 - especially those related to climate change - do not definitely express the human rights aspects within the context of the factual State obligations, since they put the primary focus on State rights, duties, and obligations. However, under the preamble of the 2015 Paris Agreement (reaffirmed by the 2021 Glasgow Climate Pact), the States acknowledge ‘that climate change is a common concern of humankind. Parties should, when taking action to address climate change, respect, promote and consider (…) human rights.’ Furthermore, in para. 62, the 2021 Glasgow Climate Pact refers to the need for the implementation of the Glasgow work programme on Action for Climate Empowerment that respects, promotes and considers the respective obligations on human rights.
Regarding the European Convention on Human Rights and its Protocols, the European Convention on Human Rights has already protected ‘indirectly some connotations of a human right to environment, thanks to an exercise of judicial activism and judicial self-restraint’.47 However, the European Court of Human Rights has had a long docket and list of cases in which the judicial forum implicitly expressed the right to a healthy environment, or some of its inherent parts, as components of other, codified civil and political, freedom rights.48 This judicial practice can be traced back to the milestone and groundbreaking decision in López Ostra v. Spain in 1994,49 in which the Strasbourg court concluded that the failure of protection against industrial pollution may imply the violation of the ‘right to respect of private and family life’ (art. 8 of the Convention). Since then, the European Court of Human Rights has taken into account several environmental concerns, as the judicial forum has delivered judgements on the violation of the right to life (art. 2), the prohibition of inhuman or degrading treatment (art. 3), the right to liberty and security (art. 5), the right to a fair trial (art. 6), the right to respect for private and family life and home (art. 8), the right to an effective remedy (art. 13) and the protection of property (art. 1 of Protocol No. 1 to the Convention).
Within the wider European context, the right to a healthy environment has not achieved standalone and explicit recognition in the regional European treaties (whether these treaties were adopted under the aegis of the EU or the Council of Europe).50
The same holds true for the 1986 European Social Charter (under the Council of Europe), that uses a laconic wording in Article 3 by protecting and promoting the right to safe and healthy working conditions; however, such recognition did not reach the level of the identification of a certain right.51 The 2000 Charter of Fundamental Rights of the European Union only set out the protection of the environment in very general terms,52 without recognizing a substantive explicit right to a healthy environment.
Besides Europe, as regards the African and the American human rights protection regional systems, the texts of some relevant regional treaties are more favourable to the enjoyment of the right to environmental(ly relevant) entitlements. In Africa, the 1981 African Charter on Human and Peoples' Rights recognized people's right to a general satisfactory environment that is ‘favourable to their development’ (art. 24). In the inter-American system, the 1988 San Salvador Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights recognized the right to a healthy environment.53 The aforementioned 1988 Protocol, as a proponent of economic, social and cultural rights, is considered to be an environment-focused document setting out – beyond the right to a healthy environment – the right to just, equitable, and satisfactory conditions of work (art. 7), the right to health (art. 10) and the right to food (art. 12), too. These articles and the protected rights within them have common roots with the progressive interpretation of human rights in the world of climate change and detrimental environmental changes. There is also a pending advisory opinion request before the Inter-American Court of Human Rights. The Republic of Colombia and the Republic of Chile submitted a request for an advisory opinion (in Spanish) on the human rights and the climate change aspects on 9 January 2023. The non-binding advisory opinion will definitely touch relevant issues on the interlinkage of the respective two fields. Therefore, it can be concluded, that some contents of the environmental rights and other similar entitlements induced by the global threats caused by climate change, environmental degradation and their collateral effects have implicitly become part of the content of a small number of human rights treaties, such as the European Convention on Human Rights as interpreted by the European Court of Human Rights. The explicit recognition of the right to (a healthy) environment is still missing from the majority of human rights treaties; however, several elements and the inherent content of this ambitious right are included in a great number of treaties (in the form of the right to food, water, sanitation, etc.). Nevertheless, the meaning, the notion, the normative content and the required state obligations, have remained unclear within the texts in terms of effective implementation. On the other hand, it is a well-known fact that predominantly the right to food,54 the right to water,55 the right to sanitation or the right to adequate housing appear in treaties (with different levels of recognition). However, it is uncertain whether these rights are equivalent to the classical group of rights or whether they are rather non-obligatory state aims ‘disguised’ as human rights.
It is worth mentioning that the definiteness of the environmentally relevant green rights is unclear; they seem to be state aims, rather than enforceable specific obligations of the state towards the addressee and beneficiary of these rights (i.e. as human rights). Second, states may heavily invest in providing these rights, and therefore, the level of deliberation and financial opportunities in states is relatively high. Thirdly, the applications of these rights, as well as the need to apply socio-economic rights, differ for different groups of individuals. And above all, if children are the addressees and beneficiaries of these rights, the problems seem to be more severe. Unlike the first generation freedom rights, which are – more or less – universal and universally applicable, socio-economic, regional and other attributes deeply influence the domain and needs of the individuals and groups of different regions. Generally, uniform and identical protection and promotion cannot be accomplished due to the different circumstances in lifestyles (urban or rural and many other societal features) and economic as well as ecological characteristics. And in sum, children are more exposed to these circumstances than adults. The particularities (at the level of the states) of the application of such rights in domestic legal systems are too heterogeneous to efficiently unify them by delivering common applicability and justiciability rules (rather, minimum standards and principles must be declared).56
Cullet had already emphasized that a ‘right to environment (…) has the advantage of representing a less biased formulation while recognizing that the contents of the right are likely to evolve very rapidly as new environmental problems emerge.’57 There is no doubt that the newly emerging environmental (and urban) challenges, as well as the rapidly changing weather and climate conditions, demand the presence of general clauses and human rights for abstract notions in order to reach a proper level of adaptiveness and resilience, even in the case of children's rights.
And beyond the international regulation, as Bratspies underlined, more than 90 states have recognized the right in their constitutions.58 Therefore, there is a ‘possibility that the right to a healthy environment may be becoming a general principle of law recognized by civilized nations’ and thus, a source of international law under Article 38 of the ICJ Statute. Although it is very controversial, this statement provides enough ammunition and reference points for future legislative efforts.
3 Children's rights to a healthy environment
The overview of the Environment and Children's Rights in International Law and National Jurisprudence (adopted under the aegis of the UNICEF)59 identified the CRC and other multilateral (regional and universal) environmental agreements60 as relevant to the subject.
3.1 The provisions of the UN convention on the rights of the child related to a healthy environment
After ten years of preparatory work, the UN Convention on the Rights of the Child (UN CRC) entered into force on 2 September 1990, almost a year after its adoption by the UN General Assembly on 20 November 1989, and still remains the most widely accepted international human rights document, which only one country in the world has not accepted as binding, the USA.
The UN CRC aims to encourage states to play an active role in ensuring the well-being, welfare and rights of children, and to bring together and harmonize children's rights which are scattered among different international legal treaties.
Children's rights are given their clearest form in the UN CRC, which sets out in 54 articles (40 on rights and 14 on implementation) the rights of children, now in the form of a binding international legal document that covers a wide range of human rights and excludes discrimination in the enforcement of rights. The four guiding principles of the UN CRC61 are the following, based on the UN Committee on the Rights of the Child (henceforward: CRC Committee): the right to non-discrimination; the best interests of the child; the right to life, survival and development; and the right to participation.
The UN CRC has radically changed the way we think about children and childhood, setting minimum standards for the care, education, development and participation of all children before the age of 18. Protecting childhood has become an imperative,62 and the idea of the ‘global child’ was born.
The question of who is a ‘child’ in terms of the UN CRC is primarily addressed in Article 1 of the UN CRC which states that ‘for the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’.
Given strong state disagreement on the issue of when life – and so childhood for the purposes of UN CRC rights enjoyment – begins, the convention itself contains no provisions relating to the start of (or ‘minimum age’ of) childhood or children's rights (except the reference to the protection of the unborn child in the UN CRC Preamble, which quotes a section of the 1959 Declaration of the Rights of the Child recognizing that the child ‘by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth’), but the ratifying states need to ensure the rights of children for everyone under 18 years of age.
What about the rights of future generations? Based on the literature, there is no specific definition of ‘future generations’ for the purposes of international human rights law. (Indeed, even the normative basis of recognizing the human rights of future generations in international human rights law is still unclear and challenged at present).63 Some understandings of ‘future generations’ explicitly encompass already existing/current/born generations, and hence children in the here and now.64 In terms of this approach, ‘many people who will be living then have already arrived and inherited their full allotment of human rights’ and the focus should be on ensuring their rights throughout their lives – both as children and future adults.65
Interestingly the UN CRC is among the very few human rights instruments which explicitly require active measures from the States Parties in order to protect the environment.
Article 24 (2) on the right of the child to the enjoyment of the highest attainable standard of health contains provisions related environmental pollution, including:
‘States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measure (…) to combat disease and malnutrition taking into consideration the dangers and risks of environmental pollution.’
Regarding the aims of education, Article 29 (1) declares that ‘States Parties agree that the education of the child shall be directed to (…) [t]he development of respect for the natural environment.’
Beyond these obligations for states, which in terms of content, are different, but still clear and direct, there are also other articles which relate to environmental protection, as follows:
Obviously, Article 6 on the rights to life, survival and development can be mentioned first and foremost, which says ‘(1) States Parties recognize that every child has the inherent right to life. (2) States Parties shall ensure to the maximum extent possible the survival and development of the child.’, Article 2 on right to non-discrimination, Articles 12 and 13 on the rights to participation (the right to be heard and freedom of speech), the best interests of the child guaranteed in Article 3, which says ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’, Article 37 on the right to an adequate standard of living, Article 17 on the right to information, and Article 31 on the right to rest, play and recreate. It must also be mentioned here that environmental concerns can be seen as higher risk for specific groups of children (such as children living with disabilities (Article 23) and indigenous children (Article 30).
However, the UN CRC only mentions the protection of unborn children in its Preamble, although certain environmental factors can impact the child not only before birth, but also even before conception (e.g. disability and diseases associated with exposure to toxic substances) and some hazardous substances from human activity remain in water, food, air and soil for a long time and so expose generations of children to environmental risks.66
The CRC has three Optional Protocols which will be referred to here. The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC)67 and the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPAC)68 were adopted in 2000. Through the perspective of the impact of climate and environmental issues, both OPs can be analyzed, something which, however, is beyond this paper's scope. Briefly considering the OPAC, it is obvious that it also has a close link to the right to a healthy environment, e.g. armed conflicts can also trigger the pollution of soil and water, as areas can also be contaminated by poisons or explosive remnants left behind as a consequence or even a deliberate element of a war strategy; moreover, an armed conflict also contributes to environmental degradation.
The OPSC has to be mentioned here, as it is clear that even more children bear the burden of climate change, so they face extreme poverty, social inequalities, or food insecurity, or they are forcibly displaced or flee from conflicts. The climate crisis acts as a triggering factor to those risks, and the circumstances exacerbate children's vulnerabilities to violence.
3.1.1 Possibilities of the UN CRC committee
Under Article 44 of the UN CRC, each State Party must report every five years on the measures it has taken to implement the provisions of the Convention (and the Optional Protocols). Article 44 also requires that country reports be made as widely available as possible to all.
The CRC Committee, part of the Office of the United Nations High Commissioner for Human Rights (OHCHR), is one of the ten UN Convention-related committees/treaty-bodies.
It can be seen as a kind of (soft) case law that the Committee's work has now resulted in hundreds of concluding observations detailing the progress made in implementation by countries ratifying the UN CRC and the shortcomings identified by the Committee.
The CRC Committee (along with the CEDAW and CESR Committees69) appears to be committed to systematically addressing relevant climate change considerations in their work. As a recent report shows, the CRC Committee referred to climate change in 29 state monitoring processes – in either Concluding Observations (COBs), Lists of Issues (LOIs), or Lists of Issues Prior to Reporting (LOIPRs) – in 2020 and 2021, out of a total of 61 outputs. So the outputs with climate reference of the CRC Committee in the context of the state reporting procedure have systematically and gradually increased from 2012.70 It must also be mentioned that the CRC Committee has devoted special attention to States' duty to reduce emissions and to mitigation, but has also highlighted the importance of child participation in 23 of its 29 outputs to States addressing climate change in 2020 and 2021.
Despite the importance of monitoring, the lack of enforcement often makes the CRC Committee's work (and the UN framework) a target for criticism. The absence of an international court that can specifically address direct violations of children's rights, and the fact that until the adoption of the Third Optional Protocol (OPIC)71 in 2011 the CRC Committee was the only one of the treaty bodies not able to receive individual complaints, made child rights litigation even harder. But the adoption of the OPIC state of play has changed greatly. In October 2021, the CRC Committee published its long-awaited decision on admissibility in the so-called ‘climate change case’ (Sacchi et al v. Argentina et al), where it was found that a State party can be held responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory. Together with the decision, the CRC Committee also published an open letter to the child and young complainants and its first-ever child-friendly version of a decision. Before this historic ruling, in September 2019, 16 child human rights defenders and climate activists (including the since then iconic Greta Thunberg from Sweden) from 12 different countries – with only five from countries that had ratified OPIC – filed a very high profile petition72 against five state parties of the UN CRC, which also received intense media attention and a UNICEF press conference at its launch. Argentina, Brazil, France, Germany and Turkey are the five of the world's largest emitters which had recognized the competence of the CRC Committee to receive communications by ratifying OPIC.
This is a milestone for two reasons: firstly, as it is a clear and real form of child participation, as the complainants are children and young people, and secondly as it is a first ruling of the CRC Committee on climate issues.
‘Petitioners, children from around the world, already carry that burden. Climate change is exposing them to life-threatening dangers and harming their health and development.’ says the petition (para 4). Mitigating climate change is a human rights imperative. In the context of the climate crisis, obligations under international human rights law are informed by the rules and principles of international environmental law. The CRC must be interpreted taking into account the respondents' obligations under international environmental law. Each respondent has failed to uphold its obligations under the Convention to (i) prevent foreseeable domestic and extraterritorial human rights violations resulting from climate change; (ii) cooperate internationally in the face of the global climate emergency; (iii) apply the precautionary principle to protect life in the face of uncertainty, and (iv) ensure intergenerational justice for children and posterity.
when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated for the purposes of article 5 (1) of the Optional Protocol if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, when the State of origin exercises effective control over the sources of the emissions in question.
Interestingly, the CRC Committee built its reasoning on extraterritorial jurisdiction upon the Inter-American Court of Human Rights' Advisory Opinion OC-23/17 on the Environment and Human Rights.
The CRC Committee, however, deemed the claim inadmissible on procedural grounds, as it considered that the petitioners had not exhausted the required domestic remedies. ‘Overall, the decision, while a loss for the specific claimants, was a major win for future climate change complaints under the OPIC due to the Committee's expansive approach to the jurisdictional issue and causality.’73
We can still mention that there is a pending and ongoing case before the CRC Committee touching upon environmental, sustainable issues (Mining project on land of indigenous Inari Sami peoples which affects reindeer herding sustainability). As the case against Finland started in 2022, we cannot therefore make conclusions and findings at this moment.74
Beyond the promising new field of climate justice, the CRC Committee seems to be committed to holding climate issues to the international child rights agenda, as the Day of General Discussion (DGD) was dedicated in 2016 to the topic of children's rights and the environment, to foster a deeper understanding of the provisions of the UN CRC with regard to environmental issues.75 As a ‘usual’ consequence of such DGDs the CRC Committee started to work on its new General Comment which addresses the topic: Children's Rights and the Environment with a Special Focus on Climate Change (General Comment No. 26, 2023 draft). The CRC Committee hosts a series of offline and online consultations and workshops with the global community, also including specific consultations with children and young people between December 2021 and 2023, to inform about the launch of the General Comment in 2023. In 2021, the concept note was also consulted by various parties, whose opinions are now accessible, and in November 2022, the CRC Committee again invited all interested parties to comment on its draft General Comment, and has now received publicly accessible submissions from 17 States, regional organizations (such as the Council for Europe), UN agencies (such as the UNICEF and 2 national committees, IOM, ILO, UN Special representatives, such as the Special Representative for Violence against Children and the Special Representative for Children and Armed Conflict), 4 national human rights institutions and 3 children's rights institutions, as well as 13 children's and adolescent groups, and a very high number – 94 – of opinions have arrived from NGOs, academia and other stakeholders (dealing with various children's rights, child justice, climate finance, reproductive rights, the vegan community's interests, churches, refugee and disability rights, preterm infants, and child psychology).76
3.2 Regional children's rights instruments
3.2.1 European Union
Children's rights should be protected by the EU as part of general human rights, both because of the obligation of EU Member States to sign and ratify the UN CRC itself and other international human rights instruments (in particular the European Convention on Human Rights (ECHR), or the UN Millennium Declaration), and because of the EU's ambition to make progress in the protection of fundamental rights in Europe, which has been lacking so far. As a first step, the Charter of Fundamental Rights, which also entered into force in December 2009 as part of the Lisbon Treaty and now has binding legal force, created the obligation to protect fundamental rights at European level.
For the first time, the Charter of Fundamental Rights makes a detailed reference to children's rights at EU 'constitutional' level, recognizing, among other things, the right of children to free access to compulsory education (Article 14(2)), the prohibition of age discrimination (Article 21) and the prohibition of exploitative child labour (Article 32). Significantly, the Charter contains a specific provision on the rights of the child (Article 24).
It is worth noting that, as a separate reference, the Treaty of the European Union, before the articles on the protection of the rights of disabled and elderly persons, provides in the separate Article 24 on the ‘rights of the child’ that
‘Children have the right to the protection and care necessary for their well-being. Children shall be free to express their views. In matters concerning them, their views shall be taken into account in accordance with their age and maturity.
The best interests of the child shall be the primary consideration in the activities of public authorities and private institutions in relation to children.
Every child has the right to maintain regular, personal and direct contact with both parents, unless this is contrary to his or her best interests.’
It must also be mentioned that the Charter contains a provision in Article 37 on environmental protection: ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’
The development of provisions related to children's rights in the EU has been gradual, with the pace of development varying from one area to another. Traditionally, European children's rights have mainly addressed specific aspects of children-related aspects of broader economic and policy-driven initiatives, such as consumer protection and free movement of persons.
3.2.2 Council of Europe
The Council of Europe (CoE) has been far ahead of the EU in being pioneering and proactive in protecting children's rights. Its most important human rights treaty is the ECHR, which has been ratified by all CoE Member States and contains specific provisions on children (together with its additional protocols). Many of these are particularly relevant to children, such as Article 8 of the ECHR, which guarantees the right to respect for private and family life, and Article 3, which prohibits torture and inhuman and degrading treatment or punishment. The European Court of Human Rights (ECtHR) has developed an extensive jurisprudence on the rights of the child,77 with frequent (and increasing) references to the UN CRC, using interpretative approaches focusing on the positive obligations contained in the ECHR provisions. However, since the ECtHR examines applications on a case-by-case basis, it does not provide a comprehensive overview of children's rights under the ECHR.
Whilst all Council of Europe member states have ratified both the UN CRC and the UN Paris Agreement on Climate Change,78 they face considerable implementation challenges, so they wish to strengthen their general political commitment towards combating climate change (see their latest recommendations79). These implementation challenges and the serious concerns of empowered young people are also reflected in the recent work of the ECtHR. There are currently some cases pending before the ECtHR in which children and young people are the applicants. In Duarte Agostinho and Others v. Portugal and 32 Others (application no. 39371/20) case, six Portuguese youths (aged between 10 and 23) filed a complaint against 33 countries (including Hungary). The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action. In the Uricchio v. Italy and 32 other States (application no. 14615/21) a young Italian adult filed a complaint against 32 countries.80 In Engels v. Germany (application no. 46906/22) nine teenagers and young adults complain, relying on Articles 2 (right to life) and 8 (right to respect for private and family life) to the ECHR, that the new objectives of the German Climate Protection Act in its amended version which entered into force on 31 August 2021, are insufficient to reduce greenhouse gas emissions to the level necessary for meeting the Paris Agreement temperature goals.81
3.2.3 African Charter on the Rights and Welfare of the child
The African Charter on the Rights and Welfare of the Child (ACRWC or Children's Charter) is a regional human rights treaty which was adopted in 1990 by the Organisation of African Unity (OAU) (which became the African Union in 2001) and came into force in 1999. Similarly to the UN CRC it sets out rights and defines principles for the status of children, but of course with a strong special focus on Africa. It was developed for the reason that UN CRC missed important socio-cultural and economic realities82 particular to Africa (such as the practices of recruitment of children under 18 years of age, the high prevalence of sexual exploitation of children, child begging, extreme child labour and exploitation, severe hunger and other consequences of natural conditions, etc.)
Related to the right to a healthy environment several articles can be cited, such as the ACRW's Preamble which mentions ‘Noting with concern that the situation of most African children remains critical due to the unique factors of their socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger, and on account of the child's physical and mental immaturity he/she needs special safeguards and care’ (Preamble, para 3), as well as article 5 on the right to survival and development, article 4 on the best interests of the child and article 14 on right to health. Article 11 on education contains a more complex list in comparison with the UN CRC, and contains a special section devoted to ‘(g) the development of respect for the environment and natural resources.’
We all know, sadly, that beyond these norms are the harmful consequences of climate change or environmental challenges facing children and young people living in a big and young continent, where not only the number of children is high,83 but parallel with this the mortality rate is still the highest in the world, and the vulnerability of these at risk groups is increased by the low income per capita.
We mention here also that the African Charter on Human and People's Rights also deals with the right to a healthy environment (Ebeku 2003).
3.3 Other documents – soft law measures
Already in 1990, the World Declaration on the Survival, Protection and Development of Children had emphasized the need to end children's suffering by providing for their well-being and acknowledging their vulnerability status by desiring that ‘all children can enjoy a safer and healthier future’.84
… we must safeguard our natural environment, with its diversity of life, its beauty and its resources, all of which enhance the quality of life, for present and future generations. We will give every assistance to protect children and minimize the impact of natural disasters and environmental degradation on them.
The resolution reaffirms the need for managing the natural resources and protecting and conserving our environment by developing legislation policies and programmes.global warming, ozone layer depletion, air pollution, hazardous wastes, exposure to hazardous chemicals and pesticides, inadequate sanitation, poor hygiene, unsafe drinking water and food and inadequate housing, need to be addressed to ensure the health and well-being of children (para 26).
environmental health threats, taking into account the special needs of children and the linkages between poverty, health and environment, with provision of financial resources, technical assistance and knowledge transfer to developing countries and countries with economies in transition (point f).
In 2017 the Office of the United Nations High Commissioner for Human Rights published an analytical study86 on the relationship between climate change and the full and effective enjoyment of the rights of the child. In the study, the OHCHR examines the impacts of climate change on children and the related human rights obligations and responsibilities of States and other actors, including the elements of a child rights-based approach to climate change policies. It provides examples of good practices and concludes with concrete recommendations for fulfilling human rights obligations, particularly those related to children's rights, in the context of climate change, such as litigation, educational policies and disaster risk reduction. The study identified six relevant challenges, in which the green rights of the children are clearly endangered; these dangers are the following: i) extreme weather and natural disasters; ii) water scarcity and food insecurity; iii) air pollution; iv) vector-borne and infectious diseases; v) impacts on mental health and vi) disproportionate impacts on children in vulnerable situations.
In 2017, the Human Rights Council resolution 34/2087 on human rights and the environment addressed the United Nations member States to facilitate the involvement of children in environmental decision-making. One year later, the Human Rights Council recognized children as a vulnerable group, for whom states should facilitate public awareness and participation in environmental decision-making as well as teaching on climate change, biodiversity and ecosystem services.88
In 2018, the Special Rapporteur on Human Rights and the Environment published a report by addressing four internationally accepted principles, such as i) future generations and intergenerational equity; ii) access to justice; iii) consultation with children and iv) non-discrimination.89
Moreover, the Special Representative of the Secretary-General on Violence Against Children Maalla M'jid presented her annual report in October 2022 to the UN General Assembly, and stressed the harsh impact that the climate crisis has on child protection and well-being of children worldwide.
In sum, the previously mentioned soft law measures are not binding on states, but these documents clearly point out the changing perception and the newly emerging recognition of children's status in the light of the protection of the environment.
Looking at the European level, the EU Strategy on the Rights of the Child was highly anticipated from child rights advocates in the EU, and was finally adopted in March 2021. However, there is no dedication to a thematic area of climate change/environmental protection, except for the second theme relating to health which can be understood in a broader context as a close link to a healthy environment and also links to various UN SDGs (Sustainable Development Goals) which were adopted by all UN Member States in 2015 to end poverty, reduce inequality and build more peaceful, prosperous societies by 2030 (e.g. clear water and sanitation (goal 6), and combat climate change (goal 13)).
The Council Conclusions on the Strategy90 in its Preamble notes that children are at greater risk than adults in various crises (e.g. armed conflicts and their aftermath, emergency situations caused by terrorism, a public health crisis, an economic crisis), among which climate change or natural disasters were also listed. Otherwise, the Strategy has no focus on climate change or the right to a healthy environment.
In 2005, the Heads of State and Government of the Council of Europe, at their Warsaw Summit, decided to launch the strategy called ‘Building a Europe with Children for Children!’,91 which has been extended several times since then, and provides the basis for the organization's commitment to a comprehensive, integrated, cross-policy approach to promoting and mainstreaming children's rights. The five priority areas of the strategy are: 1. Freedom from violence, 2. Equal opportunities and social inclusion, 3. Access to safe use of technologies, 4. Child-friendly justice, 5. Giving a voice to every child. These topics of the previous strategies are retained, and keeping the strategic structure, the Council of Europe Member States identified a sixth priority area, namely children's rights in crisis and emergency situations. This priority covers - among other issues - the access to a healthy environment and taking action to combat climate change. This area in the strategy also contains a table listing the provisions of various international legal instruments related to the issues related to climate change and environmental degradation, such as the UN CRC articles (Arts 19, 20, 22, 24, 29, 38, 39), key ECHR articles (Arts 2, 5, 8, 13, 14) and the UN SDGs Goals (1, 3, 4, 10, 11, 13). This current strategy for 2022–2027 was adopted by the Committee of Ministers of the Council of Europe on 23 February 2022 and launched at the High-level Conference ‘Beyond the horizon: a new era for the rights of the child’ in Rome on 7-8 April 2022.92
And among the regional soft law instruments here referred to is Agenda 2063,93 which has clear priorities reflecting environmental issues in Africa, such as reducing inequality, developing sustainable natural resource management and biodiversity conservation, strengthening climate resilience and natural disaster preparedness, sustainable consumption, renewable energy and youth and child empowerment.
4 Summary
The impact of environmental damage on children's rights is not a new issue, and data and research explicitly shows the links between environmental harm and child rights abuses. Moreover, there is increased awareness of environmental crises,94 more visibility of climate change (see campaigns involving celebrities as advocates (and donors) such as actor Leonardo di Caprio, Jane Fonda, or Robert Redford),95 with thousands of young people (including the most famous activist Greta Thunberg) regularly protesting on the streets in the framework of youth-led Fridays for Future demonstrations96 and organizing marches around the world. Furthermore, climate litigation practice has become more intensive over the last few decades, and there are crystal clear international legal obligations laid down in various agreements. Despite all of this, the common understanding of children's rights and their right to the environment at public and active political level is still in infancy. This continuously strengthening link between children's rights to be heard, to have access to remedy/justice and to a healthy environment gives new impetus for future research, too.
There are several crossroads between the right to a healthy environment and children's rights that remain full of uncertainties due to the lack of adequate and binding regulation. Notwithstanding this, the relevant rules and principles of a particular field can be applied to the other domain of rights; for example, existing green rights more or less concern the situation of children as well. The same holds true for the supreme principle of the best interests of the child within the environmentally relevant green rights. Thus, such crossroads within these fields mean a multiplication of legal regimes which apply to children in an environmentally fragile world.
The United Nations-backed 2015–2030 SDGs definitely reflect on children's special needs and their originally vulnerable status in a time of climate change. In several goals and targets, children are among the most vulnerable groups during and in the wake of climate-related disasters,97 therefore their special needs and protection should be one of the main duties of the States tackling climate deterioration. The Position Paper for COP 27 delivered by the Children's Environmental Rights Initiative clearly demonstrated that children's rights and climate change have three interrelated dimensions. These dimensions include, firstly, the idea that climate change has ‘immediate and long-term implications for the full range of children's rights'; secondly, that the ‘failure to integrate children's rights (…) into climate action can lead to those rights being undermined’; and thirdly, that the need for integrating children's rights into the States' climate change policies and action may ‘improve effectiveness and benefit people and the planet’.98
As the Children's Environmental Rights Initiative stated in 2021, ‘policymakers and the wider public must recognise children as equal stakeholders and key agents of change in the climate and environmental crisis’99 as is also affirmed by the Generation Hope Report100 from 2022. This kind of new approach would thereby simultaneously strengthen specific children's rights and the right to a clean and healthy environment in general as well.
Literature
African Union Commission, ‘Agenda 2063: The Africa We Want’ (2015) <https://au.int/sites/default/files/documents/36204-doc-agenda2063_popular_version_en.pdf> accessed 6 December 2022.
Alston, P., ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332–81.
Boyd, D., The Environmental Rights Revolution. A Global Study of Constitutions, Human Rights, and the Environment (University of British Columbia Press 2011).
Boyden, J., ‘Childhood and the Policy Makers: a Perspective on the Globalization of Childhood’ in James, A. and Prout, A. (eds), Constructing and Reconstructing Childhood: contemporary issues in the sociological study of childhood (Routledge 2015) 184–213.
Boyle, A. and Anderson, M. (eds), Human Rights Approaches to Environmental Protection (Oxford University Press 1996).
Bratspies, R., ‘Do We Need a Human Right to a Healthy Environment?’ (2015) 13 Santa Clara Journal of International Law 31–79.
Brown Weiss, E., International Law for a Water-Scarce World (Martinus Nijhoff Publishers 2013).
Children’s Environmental Rights Initiative, ‘Position Paper for COP 27 by Children’s Environmental Rights Initiative. Incorporating Child Rights Into Climate Action’ (2022) <https://ceri-coalition.org/wp-content/uploads/2022/11/COP27-Position-Paper-Incorporating-Child-Rights-into-Climate-Action.pdf> accessed 6 December 2022.
Ciel, ‘The Global Initiative: Human Rights Obligations in the Context of Climate Change. Guidance Provided by the UN Human Rights Treaty Bodies. 2022 Update’ (2022) <https://www.ciel.org/wp-content/uploads/2023/01/HRTB-2022_23Jan23.pdf> accessed 6 December 2022.
Colón-González, F. J., Fezzi, C., Lake, I. R. and Hunter, P. R., ‘The effects of weather and climate change on Dengue’ (2013) 7 PLOS NegI Trop. Dis. e2503 <https://journals.plos.org/plosntds/article/file?id=10.1371/journal.pntd.0002503&type=printable> accessed 6 December 2022.
Committee on the Rights of the Child, ‘Report of the 2016 Day of General Discussion. Children’s Rights and the Environment’ (n.d.) <https://www.ohchr.org/sites/default/files/Documents/HRBodies/CRC/Discussions/2016/DGDoutcomereport-May2017.pdf> accessed 6 December 2022.
Council of Europe, ‘Building a Europe for and with children’ ([2005]) <https://www.coe.int/t/dg3/children/BriefDescription/Default_en.asp> accessed 6 December 2022.
Council of Europe, ‘Council of Europe Strategy for the Rights of the Child (2022–2027)’ (2022) <https://rm.coe.int/council-of-europe-strategy-for-the-rights-of-the-child-2022-2027-child/1680a5ef27> accessed 6 December 2022.
Cullet, P., ‘Definition of an Environmental Right in a Human Rights Context’ (1995) 13 Netherlands Quarterly of Human Rights 25–40.
Daly, A., ‘Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law’ (2022) 22 Human Rights Law Review <https://academic.oup.com/hrlr/article/22/2/ngac011/6565727> accessed 6 December 2022.
Donnelly, J., ‘The Relative Universality of Human Rights’ (2007) 29 Human Rights Quarterly 281–306.
Downs, J., ‘A Healthy and Ecologically Balanced Environment: An Argument for a Third Generation Right’ (1993) 3 Duke Journal of Comparative and International Law 351–85.
ECtHR, ‘Climate change’ (March 2023) <https://www.echr.coe.int/Documents/FS_Climate_change_ENG.pdf> accessed 6 December 2022.
Ebeku, S. A. K., ‘The right to a satisfactory environment and the African Commission’ (2003) 3 African Human Rights Law Journal 149–66.
Eide, A., The New International Economic Order and the Promotion of Human Rights: Report on the right to adequate food as a human right (United Nations, Economic and Social Council 1987). UN Subcommission on Prevention of Discrimination and Protection of Minorities. Adopted at the 34th meeting, 29 August 1984. E/CN.4/Sub.2/1984/43-E/CN.4/1985/3. (19 Oct. 1984) 89–90.
Council of the European Union ‘The Council Conclusion on the EU Strategy on the Rights of the Child’ (2022) <https://data.consilium.europa.eu/doc/document/ST-10024-2022-INIT/en/pdf> accessed 6 December 2022.
European Court of Human Rights, ‘Children’s rights, Factsheet’ (2022) <https://www.echr.coe.int/Documents/FS_Childrens_ENG.pdf> accessed 6 December 2022.
Goodman, M. K., Doyle, J. and Farrell, N., ‘Celebrities and Climate Change’, IIRA (2022) <https://iiraorg.com/2022/06/12/celebrities-and-climate-change/> accessed 6 December 2022.
Hammarberg, T., ‘The UN Convention on the Rights of the Child - and How to Make It Work’ (1990) 12 Human Rights Quarterly 97–105.
IPCC, ‘AR6 Synthesis Report, Climate Change 2023’ (2023) <https://www.ipcc.ch/report/ar6/syr/> accessed 6 December 2022.
IPCC, ‘Climate Change 2014 Impacts, Adaptation, and Vulnerability Part A: Global and Sectoral Aspects’ (2014) <https://www.ipcc.ch/site/assets/uploads/2018/02/WGIIAR5-PartA_FINAL.pdf> accessed 6 December 2022.
Ippolito, F., Children’s Environmental Rights Under International and EU Law. The Changing Face of Fundamental Rights in Pursuit of Ecocentrism (Springer 2023).
Jones, P. and Walker, G., Children's Rights in Practice (Sage 2011).
Kløcker Larsen, R., Boström, M., District, M. R. H., District, V. S. R. H., District, V. R. H. and Wik-Karlsson, J., ‘The impacts of mining on Sámi lands: A knowledge synthesis from three reindeer herding districts’ (2022) 9 The Extractive Industries and Society 1–10.
Law, D. and Versteeg, M., ‘The Evolution and Ideology of Global Constitutionalism’ (2011) 99 California Law Review 1163–1257.
Merrills, J., ‘Environmental Rights’ in Bodansky , D., Brunnée, J. and Hey, E. (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 663–80.
Miller, C., ‘Environmental Rights: European Fact or English Fiction?’ (1995) 22 Journal of Law and Society 374–97.
Mower, G., ‘Human Rights in Western Europe: Progress and Problems’ (1976) 52 International Affairs (Royal Institute of International Affairs) 235–51.
Nieuwenhuijsen, M. J., Dadvand, P., Grellier J., Martinez, D. and Vrijheid, M., ‘Environmental risk factors of pregnancy outcomes: a summary of recent meta-analyses of epidemiological studies’ (2013) 12 Environmental Health <https://doi.org/10.1186/1476-069X-12-6>.
Nolan, A., ‘Children’s Rights and Climate Change at the UN Committee on the Rights of the Child: Pragmatism and Principle in Sacchi v Argentina’, EJIL: Talk! (20 October 2021) <https://www.ejiltalk.org/childrens-rights-and-climate-change-at-the-un-committee-on-the-rights-of-the-child-pragmatism-and-principle-in-sacchi-v-argentina/> accessed 6 December 2022.
Posner, E., ‘Human Welfare, Not Human Rights’ (2008) 108 Columbia Law Review 1758–1801.
Prüss-Ustün, A., Wolf, J., Carvalán, C., Bos, R. and Neira, M., Preventing disease through healthy environments: A global assessment of the environmental burden of disease from environmental risks (WHO 2016).
Pupavac, V., ‘Misanthropy without borders: the international children's rights regime’ (2001) 25 Disasters 95–112.
Razzaque, J., ‘Human Rights to a Clean Environment: Procedural Rights’ in Fitzmaurice, M., Ong, D. and Merkouris, P. (eds), Research Handbook on International Environmental Law (Edward Elgar 2010) 284–300.
Riddell, A., ‘New Perspectives on Connecting Human Rights and International Environmental Law’ in Sancin, V. (ed), International Environmental Law: Contemporary Concerns and Challenges, GV (Založba 2012) 131–51.
Ruppel-Schlichting, K., Human, S. and Ruppel, O. C., ‘Children’s Rights: An International Law Perspective’ in Ruppel, C. O., Roschmann, C. and Ruppel-Schlichting, K. (eds), Climate Change: International Law and Global Governance: Vo. I., Legal Responses And Global Responsibility (Nomos Verlag 2013) 349–80.
San José, D., Environmental Protection and the European Convention on Human Rights (Council of Europe Publishing 2005).
Save the Children, ‘Generation hope: 2.4 billion reasons to end the global climate and inequality crisis’ (2022) <https://resourcecentre.savethechildren.net/pdf/Generation-Hope-Report-GLOBAL-online-version-25-10-22.pdf/> accessed 6 December 2022.
Save the Children International, ‘Born Into the Climate Crisis. Why We Must Act Now To Secure Children’s Rights’ (2021a) <https://resourcecentre.savethechildren.net/pdf/born-into-the-climate-crisis.pdf/> accessed 6 December 2022.
Save the Children International, ‘Walking Into The Eye Of The Storm: A perfect storm: how climate change is driving child migration and displacement’ (2021b) <https://resourcecentre.savethechildren.net/pdf/Eye-of-the-Storm.pdf/> accessed 6 December 2022.
Shelton, D., ’Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103–38.
Skogly, S., ‘The Right to Continuous Improvement of Living Conditions and Human Rights of Future Generations – A Circle Impossible to Square?’ in Hohmann, J. and Goldblatt, J. (eds), The Right to the Continuous Improvement of Living Conditions Responding to Complex Global Challenges (Hart Publishing 2021) (n.d.).
Thielbörger, P., ‘The Right(s) to Water. The Multi-Level Governance of a Unique Human Right’ (Springer 2014).
Thiery, W., Lange, S., Rogelj, J., Schleussner, C.-F., Gudmundsson, L., Seneviratne, S. I., Frieler, K., Emanuel, K., Geiger, T., Bresch, D. N., Zhao, F., Willner, S. N., Büchner, M., Volkholz, J. and the ISIMIP modelling team, ‘The kids aren't alright’ (19–30 Apr 2021) EGU General Assembly 2021, online, EGU21-12267 <https://doi.org/10.5194/egusphere-egu21-12267>.
UN Committee on the Rights of the Child, General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health.
UN Committee on the Rights of the Child, ‘Report of the Day of General Discussion. Children’s Rights and the Environment’ (2016) <https://www.ohchr.org/sites/default/files/Documents/HRBodies/CRC/Discussions/2016/DGDoutcomereport-May2017.pdf> accessed 6 December 2022.
UN, Department of Economic and Social Affairs Population Division, ‘Population’ (2022) <https://population.un.org/wpp/Download/Standard/Population/> accessed 6 December 2022.
UNEP, ‘Children’s Rights and the Environment. Guidance On Reporting To The Committee On The Rights Of The Child. Children’s Environmental Rights Initiative, August 2020’, (1 December 2020) <https://www.unep.org/resources/publication/childrens-rights-and-environment-guidance-reporting-committee-rights-child> accessed 6 December 2022.
UNEP, ‘What is the Rights to a healthy environment. Information note’ (2022) <https://www.unep.org/resources/publication/what-right-healthy-environment-information-note> accessed 6 December 2022.
UNHCR, The UN Refugee Agency, ‘Climate change and disaster displacement’ (n.d.) <https://www.unhcr.org/climate-change-and-disasters.html> accessed 6 December 2022.
UNICEF, Celebrating 20 years of the Convention on the Rights of the Child. The state of the world's children. Special edition . (New York 2009).
UNICEF, ‘Child Malnutrition’ (2022c) <https://data.unicef.org/topic/nutrition/malnutrition/> accessed 6 December 2022.
UNICEF, ‘Children's environmental rights in national and international law Background paper’ (2020) <https://www.unicef.org/eap/reports/childrens-environmental-rights-national-and-international-law> accessed 6 December 2022.
UNICEF, ‘Diarrhoea’ (2022a) <https://data.unicef.org/topic/child-health/diarrhoeal-disease/> accessed 6 December 2022.
UNICEF, ‘Fact sheet: COP26 - Children and climate change (2021a)’ <https://www.unicef.org/press-releases/fact-sheet-cop26-children-and-climate-change> accessed 6 December 2022.
UNICEF, ‘The climate crisis is a child rights crisis’ (2021). <https://www.unicef.org/reports/climate-crisis-child-rights-crisis> accessed 6 December 2022.
UNICEF, ‘The State of Food Security and Nutrition in the World 2022’ (2022) <https://data.unicef.org/resources/sofi-2022/> accessed 6 December 2022.
UNICEF, ‘Under-five mortality’ (2022b) <https://data.unicef.org/topic/child-survival/under-five-mortality/> accessed 6 December 2022.
UNICEF, Unless We Act Now: The Impact of Climate Change on Children (n.d. 2015).
UNICEF, WHO, World Bank, ‘Levels and trends in child malnutrition. UNICEF/WHO/World Bank Group Joint Malnutrition Estimates. Key findings of the 2021 edition’ <https://www.who.int/publications/i/item/9789240025257> accessed 6 December 2022.
UN Committee on the Rights of the Child ‘General comment No. 26 (2023, draft) on children's rights and the environment with a special focus on climate change’ <https://www.ohchr.org/en/documents/general-comments-and-recommendations/draft-general-comment-no-26-childrens-rights-and> accessed December 2022.
UN General Assembly, ‘Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict’ (2000) <https://www.ohchr.org/en/instruments-mechanisms/instruments/optional-protocol-convention-rights-child-involvement-children> accessed 6 December 2022.
UN General Assembly, ‘Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography’ (2000a) <https://www.ohchr.org/en/instruments-mechanisms/instruments/optional-protocol-convention-rights-child-sale-children-child> accessed 6 December 2022.
WHO, UNEP, Healthy environment for healthy children: key messages for action (Geneva, 2010), WHO: Don’t pollute my future! The impact of the environment on children’s health (n.d. 2017).
Links
Link1: ‘The Global Climate Change Litigation Database’ <http://climatecasechart.com/non-us-climate-change-litigation/> accessed 6 December 2022.
Link2: ‘Communication to the Committee on the Rights of the Child’ (23 September 2019) <https://childrenvsclimatecrisis.org/wp-content/uploads/2019/09/2019.09.23-CRC-communication-Sacchi-et-al-v.-Argentina-et-al-Redacted.pdf> accessed 6 December 2022.
Link3: ‘Climate Change Laws of the World’ <https://climate-laws.org> accessed 6 December 2022.
Link4: ‘Fridays For Future’ <https://fridaysforfuture.org/what-we-do/who-we-are/> accessed 6 December 2022.
Link5: ‘Paris Agreement, 2015’ <https://unfccc.int/sites/default/files/english_paris_agreement.pdf> accessed 6 December 2022.
Link6: ‘Annual Report, 2022, United Nations General Assembly: Promotion and protection of the rights of children’ <https://violenceagainstchildren.un.org/sites/violenceagainstchildren.un.org/files/annual_report_un_srsg_vac_unga_2022.pdf> accessed 6 December 2022.
Link7: ‘General Principles’, CRIN <https://archive.crin.org/en/home/rights/themes/general-principles.html> accessed 6 December 2022.
Link8: ‘Uricchio v. Italy and 32 other States’ <http://climatecasechart.com/non-us-case/uricchio-v-italy-and-32-other-states/> accessed 6 December 2022.
UN Committee on the Rights of the Child, General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health, para. 50.
However, there is also academic research in this field, see e.g. Ippolito (2023).
See also: Ruppel-Schlichting et al. (2013).
UNICEF (2021) 13.
Diarrhea is a leading cause for mortality, responsible for approximately 9% of all deaths among children under age 5 worldwide in 2019. UNICEF (2022a).
The child mortality (under-five mortality) rate hereby refers to the probability of a child dying between birth and exactly 5 years of age (per 1000 live birth).
Nearly half of all deaths in children under 5 are attributable to undernutrition; undernutrition puts children at greater risk of dying from common infections, increases the frequency and severity of such infections, and delays recovery. See UNICEF (2022, 2022b, 2022c).
In 2020, globally, 149.2 million children under the age of 5 years of age were stunted, 45.4 million wasted, and 38.9 million overweight. The number of children with stunting is declining in all regions except Africa. More than half of all children affected by wasting live in Southern Asia, and Asia as a whole is home to more than three-quarters of all children suffering from severe wasting. UNICEF, WHO and World Bank Group (2021).
UNHCR, The UN Refugee Agency (n.d.). See also Save the Children International (2021).
The UN Committee on the Rights of Persons with Disabilities (CRPD) has raised concerns in its State reporting work about the impacts of climate change on the rights of persons with disabilities, and between 2016 and 2019, it made recommendations to six States regarding climate change. CIEL (2022) 16.
The latter term can be labeled in a shorter form as green right(s). See also here: UNEP (2022).
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, UN General Assembly, 12 July 1993, UN Doc. A/CONF.157/23. Para. I. 5.
Alston (1987) 351.
Posner (2008) 1758–1801.
This clear distinction was first elaborated by Asbjørn Eide in an official document. Eide (1984).
The three pillars are the following: i) the right to information in environmental matters; ii) the right to public participation in decision-making related to environmental matters and iii) access to justice in environmental matters.
Such as, for example, the right to have information about environmental matters, the right to privacy, the right to housing, the right to health, or the right to an adequate standard of living.
Miller (1995) 374–75.
This expressis verbis recognition is missing from the subsequent summit declaration. See the 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I)/31 ILM 874, and the 2002 Johannesburg Declaration on Sustainable Development, UN Doc. A/CONF.199/20, 2002.
Shelton (1991) 112. On the connection between environmental challenges and human rights, see Boyle-Anderson (1996).
However, Merrills shows that ‘the incorporation of environmental rights into national constitutions or their adoption into international treaties does not guarantee that the holder of such rights will always be successful when they come into conflict with other rights, but it certainly means that environmental rights must always be taken into account and also that good reasons will be needed for denying them effect.’ Merrills (2007) 666.
Mower (1976) 248.
E.g. Human rights and the environment, UN Commission on Human Rights, 24 February 1995, E/CN.4/RES/1995/14.
Riddell (2012) 133.
Cullet (1995) 27. He defined synthesis rights as general rights embodying a number of elements that may also be found in other rights. However, he mentioned that the previous definition did not have general approval. For instance, Downs (1993) 358–62.
Cullet (1995) 37.
Razzaque (2010) 284–300.
As Bratspies mentions, ‘many environmental treaties are long on aspirations but short on specifics. When treaties do include specific, enforceable obligations, those obligations are typically procedural rather than substantive.’ Bratspies (2015) 47.
1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, UN Economic Commission for Europe, 2161 UNTS 447.
UN Human Rights Committee (HRC), General Comment no. 36, Article 6 (Right to Life), 3 September 2019, CCPR/C/GC/36.
See United Nations General Assembly Resolution A/76/L.75. Res. 76/300. The human right to a clean, healthy, and sustainable environment (July 2022).
Namely the 1992 United Nations Framework Convention on Climate Change, the 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, the 2015 Paris Agreement, and the 2021 Glasgow Climate Pact.
See e.g. Environment and the European Convention on Human Rights, Factsheet, November 2015.
López Ostra v Spain (1995) 20 EHRR.
It is worth mentioning that the Committee of Ministers of the Council of Europe adopted a recommendation in 2022 in which the Committee urged the member States to ‘reflect on the nature, content and implications of the right to a clean, healthy and sustainable environment and (…) actively consider recognising at the national level this right as a human right.’ Recommendation CM/Rec(2022) 20 of the Committee of Ministers to member States on human rights and the protection of the environment. Adopted by the Committee of Ministers on 27 September 2022 at the 1444th meeting of the Ministers' Deputies.
Its wording just ensures ‘the effective exercise of the right to safe and healthy working conditions; the Parties undertake, in consultation with employers’ and workers' organizations: to formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment.’ (Article 3, para. 1.)
Article 37 reads as follows regarding environmental protection – ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.’
Article 11 of the Right to a Healthy Environment: ‘1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.’
On the content of this right, see General Comment No. 12, The right to adequate food (art. 11), Committee on Economic, Social and Cultural Rights, 12 May 1999, E/C.12/1999/5.
Brown Weiss (2013) 191–242 and Thielbörger (2014) 236. On the content of the right to water under the aegis of articles 11 and 12 of the International Covenant of Economic, Social and Cultural Rights, see General Comment No. 15, The right to water (arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), Committee on Economic, Social and Cultural Rights, 20 January 2003, E/C.12/2002/11.
On justifying particularity with regard to universal recognition and not identical practices, see Donnelly (2007) 298–301.
Cullet (1995) 30–31.
See Boyd (2011) 59–62. Bratspies (2015) 60.
1985 Vienna Convention for the Protection of the Ozone Layer, 1513 UNTS 293, 26 ILM 1529 (1987), [1988] ATS 26., 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3, 26 ILM 1541, 1550 (1987), 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1673 UNTS 5, 28 ILM 657 (1989), 1992 Convention on Biological Diversity, 1760 UNTS 79, 31 ILM 818, 1992 United Nations Framework Convention on Climate Change, 1771 U.N.T.S. 107, 165; S. Treaty Doc No. 102–38 (1992); U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 I.L.M. 849 (1992), 2015 Paris Agreement, UN Doc. FCCC/CP/2015/10/Add.1 Decision 1/CP.21., 2013 Minamata Convention on Mercury, UNEP/CHEMICALS/2013/4.
All rights in the UN CRC are linked to each other and must be considered as a whole. But the four ‘general principles’ – or overarching rights – defined by the UN CRC Committee, are particularly necessary for the fulfilment of all other rights. Addressing these four rights can help explain the reasons behind rights violations and serve as a guide to preventing violations. See Link7 and the CRC Committee General Comment No. 5. (2003) General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) 4.
Committee on the Elimination of Discrimination Against Women (CEDAW) and Committee on Economic, Social and Cultural Rights (CESCR).
The Third Optional Protocol, on participation in communication (complaint) mechanisms (OPIC), has moved into a noticeably more sensitive area, but also fills a significant gap in the UN's redress system. Until OPIC, of all the treaty bodies, only the CRC Committee was not able to receive individual complaints of violations of the provisions of the UN CRC. OPIC created the possibility for citizens of States Parties (including children) to bring complaints of violations of children's rights to the Geneva body when the remedies available at the national level have been exhausted or are not available. In addition to investigating individual and/or group complaints, the CRC Committee is also able to carry out country visits in relation to systemic violations that emerge from the case. The Protocol was adopted by the UN General Assembly in December 2011, ratification was opened and it entered into force on 14 April 2014.
On the case itself, see Kløcker Larsen et al. (2022).
UN, Office of the High Commissioner for Human Rights (2021).
The Parliamentary Assembly's Resolutions 2396 (2021) and 2399 (2021) and Recommendations 2211 (2021) and 2214 (2021) on, respectively, ‘Anchoring the right to a healthy environment: need for enhanced action by the Council of Europe’ and ‘The climate crisis and the rule of law’, had been passed in order to establish transgenerational responsibility for the preservation of the environment and new remedies for children.
It is also worth mentioning that most of the literature on the changing image of the child is based on Western (Global North) concepts. The UN CRC itself has been criticized for being predominantly a reflection of Western rights and values. Some have argued that rather than reflecting the different needs of children around the world, the convention seeks to achieve a universal representation of the 'child', which is at the same time predominantly driven by 'white', Western values. See, Boyden (2015), Pupavac (2001) 95–112, Jones-Walker (2011).
Africa's child population will reach 1 billion by 2055, making it the largest child population among all continents. From 2017 onwards, sub-Saharan Africa has become the region with the highest number of births, and this trend will persist for the rest of the century. Mortality rates among children under age 5 decreased by 58 per cent between 1990 and 2017, while over half of the world's 5.4 million under-five deaths in 2017 occurred in Africa. 9 of the 10 countries with the lowest GDP per capita are located in Africa. UNICEF (2009).
World Declaration on the Survival, Protection and Development of Children. Agreed to at the World Summit for Children on 30 September 1990. UNE/ICEF(063.1)/W67, para 20. (9).
Resolution adopted by the General Assembly [on the report of the Ad Hoc Committee of the Whole (A/S-27/19/Rev.1 and Corr.1 and 2)] S-27/2. A world fit for children. The General Assembly Adopts the document entitled ‘A world fit for children’ annexed to the present resolution. 6th plenary meeting 10 May 2002.
Analytical study on the relationship between climate change and the full and effective enjoyment of the rights of the child. Report of the Office of the United Nations High Commissioner for Human Rights. Human Rights Council. Thirty-fifth session, 6-23 June 2017, Agenda items 2 and 3. A/HRC/35/13.
United Nations General Assembly. 2017. Human Rights Council. Resolution 34 Human rights and the environment. A/HRC/34/L.33.
Point 5, para. (c) and (e) of the United Nations General Assembly. 2018. Human Rights Council. Resolution 38 Human rights and climate change. A/HRC/38/L.5.
United Nations General Assembly. Human Rights Council. Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment [Special Rapporteur's report on children's rights and environmental protection]. A/HRC/37/58.
FFF, is a youth-led and -organised global climate strike movement that started in August 2018, when 15-year-old Greta Thunberg began a school strike for the climate in Stockholm, Sweden. Link4.
UNEP (2020) 12–13.
